Current Status of ESA



As you may recall, on January 1, 2018 significant changes to the Employment Standards Act, 2000 and the Labour Relations Act came into effect as a result of Bill 148, the Fair Workplaces, Better Jobs Act.  

On November 21, 2018 the PC government passed the Making Ontario Open for Business Act, 2018 and then on April 3rd, 2019 the Restoring Ontario’s Competitiveness Act, 2018 received royal assent.  These bills once again made sweeping changes to Ontario’s employment laws, and many (but not all) of the amendments introduced by the Fair Workplaces, Better Jobs Act were eliminated.  

Many are now understandably confused about what the current status of the law is. 

The enclosed charts summarize many of the changes that have recently been made to the employment statutes and how they may affect you and your place of business. The information in these charts is legal information only and not legal advice. There are also many other components to the Employment Standards Act, 2000 and the Labour Relations Act that were not affected by the recent amendments and which are not detailed below.  Note also that the law outlined below applies only to provincially regulated employers. 

Employment Standards Act, 2000 (“ESA”)

 

BEFORE 


Changes made by the Fair Workplace Better Jobs Act 

(except where noted by *, in which case the provision previously existed)

NOW – 

Current ESA 


Changes made by the Making Ontario Open for Business and the Restoring Ontario’s Competitiveness Acts

Overtime – Averaging Agreement

Employers and Employees can enter into an agreement to average their hours of work over two or more consecutive weeks to determine entitlement to overtime pay but they are required to seek and obtain ministry approval of such agreement.*



Ministry approval is no longer required for averaging agreements.


However, hours of work can only be averaged over a maximum of four (4) consecutive weeks, and such averaging agreements must include a start and end date. 

Excess Hours of Work

Employees may not work more than 48 hours per week unless they have agreed to do so and the employer has sought and obtained ministry approval for the excess hours.*

Ministry approval is no longer required for excess hours of work agreements.



ESA Poster

The most recent Employment Standards Poster must be posted in a conspicuous spot in the workplace and a copy of the most recent poster must be given to every employee. *



The most recent Employment Standards Poster must be given to each employee within their first 30 days of service. 


The poster is no longer required to be posted in the workplace.

Minimum Wage

$14.00/hour (general)


other special minimum wages applied 

No change - $14.00/hour (general)


other special minimum wages apply

$15.00/hour (general) as of January 1, 2019


other special minimum wages would have been increasing proportionately

Cancelled.


Further adjustments to the minimum wage will be tied to inflation beginning on October 1, 2020

Paid Vacation

Less than 5 years employment: 2 weeks’ vacation time; 4% vacation pay


After 5+ years of employment: 3 weeks’ vacation time; 6% vacation pay



No change. 


Less than 5 years employment: 2 weeks’ vacation time; 4% vacation pay


After 5+ years of employment: 3 weeks’ vacation time; 6% vacation pay

Scheduling

Minimum of 3 hours’ pay for shifts that are under 3 hours (including on-call employees who are not called in or who work less than 3 hours)

Minimum of 3 hours’ pay at the employees regular wages only if:

  • Employee is required to report to work;
  • Employee does report to work;
  • Shift normally lasts for 3 hours or longer, and;
  • Employee sent home after working less than 3 hours.

Employers are not required to pay for 3 hours of work if employees were on call but were not called in to work. 

Entitlement to pay for 3 hours of work in the event of cancellation with insufficient notice (less than 48 hours)

Eliminated 

Right to Refuse Work

A right to refuse requests or demands to work on a day that an employee is not scheduled to work with insufficient notice (less than 96 hours)

Eliminated

Requests for a Change to Schedule or Work Location

An employee who has been employed for 3 months will be permitted to request a change to their schedule or work location. If the employer denies the request, the employer must provide written reasons for the denial







Eliminated

Equal Pay for Equal Work

Expands protection for equal pay for equal work to employees based on employment status (ie: part time, full time, casual, seasonal, temporary). 


Clarifies that “substantially the same” kind of work means substantially the same but not necessarily identical 

Eliminated as it relates to employment status (ie: paying part time, casual, seasonal and temporary workers the same as their full time counterparts).


Equal pay for equal work continues to apply based on sex when:

(a) employees perform substantially the same kind of work

(b) employees performance requires substantially the same skill, effort and responsibility; and

(c) employees work is performed under similar working conditions. 


(Except where the difference in pay is made on the basis of a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any other factor other than sex)


 “substantially the same” kind of work continues to mean substantially the same but not necessarily identical 



Provides protection against reprisal where an employee makes inquiries about the rate paid to another employee for the purpose of determining if the employer is providing equal pay for equal work

No change. 

Provides protection against reprisal where an employee discloses their rate of pay to another employee for the purposes of determining if the employer is complying with its obligation to provide equal pay for equal work






No change. 

Misclassification of “Employee”

Prohibits an employer from treating an employee as if that person were not an employee (i.e., misclassifying employees as independent contractors)

The burden of proof that the person is not an employee lies upon the employer

Employer prohibited from treating an employee as if they were not an employee (i.e., misclassifying employees as independent contractors)


‘Employee’ has the burden of proof (ie: to prove they are an employee).

Related Employer Liability

Separate persons will be treated as one employer if associated or related activities or businesses are or were carried on by or through an employer and one or more other persons

Unchanged. 

Public Holiday Pay

Calculated by taking the amount of regular wages earned in the pay period immediately preceding the public holiday ÷ number of days worked in that period

Calculated by taking the amount of regular wages and vacation pay earned in the four work weeks prior to the public holiday ÷ 20

Working on a Public Holiday

If an employee works on the public holiday and receives a substitute day off, the employer must provide to the employee a written statement before the public holiday that sets out the public holiday on which the employee will work, the date of the day that is substituted, and the date on which the statement is provided



Unchanged. 

If an employee does not work on the public holiday, the employer must substitute another day off and must provide to the employee a written statement before the public holiday that sets out the public holiday that is being substituted, the date of the day that is substituted for, and the date on which the statement is provided







Unchanged.

Personal Emergency Leave

Employees in all workplaces (not just those with 50+ employees) will be entitled to 10 days per calendar year (2 paid days and 8 unpaid days)

Personal Emergency Leave has been canceled in its entirety.  In its place, we have three new leaves as follows:


1.  Sick Leave – 3 unpaid days for personal illness, injury or medical emergency.


2.  Family Responsibility Leave – 3 unpaid days for an illness, injury, medical emergency or urgent matter concerning a family member 


3.  Bereavement Leave – 2 unpaid days


All of the above leaves apply only to employees who have been employed for at least two consecutive weeks.


The days under these leaves may not be prorated and may not be carried forward to subsequent years.


These days are inclusive of, and not in addition to, similar days granted under Employment Contracts. In other words, if a day (ie: paid sick day) is taken under an employment contract, it is also deemed to be taken as one of the days under the Act.  



Employers retain the right to require evidence of entitlement to these days but are not permitted to require a certificate from a qualified health practitioner

Employers can require a certificate from a qualified health practitioner to prove the employees right to the leave or other evidence reasonable in the circumstances of entitlement to these days.









Domestic and Sexual Violence Leave

An employee who has been employed for at least 13 consecutive weeks is entitled to up to 10 days and up to 15 weeks of leave if the employee or a child of the employee experiences domestic or sexual violence or the threat of domestic or sexual violence. The first five days of leave are to be paid. 


The leave must be taken for any of the following purposes:


1. To seek medical attention in respect of a physical or psychological injury or disability caused by the domestic or sexual violence.


2.  To obtain services from a victim services organization.


3.  To obtain psychological or other professional counselling.


4.  To relocate temporarily or permanently.



5.  To seek legal or law enforcement assistance.


6.  Such other purposes as may be prescribed.



Unchanged.

Critical Illness Leave for Adult Family Member

Employees with 6 consecutive months’ of service will be entitled to a critical illness leave of absence of up to 17 weeks to provide care and support to a critically ill adult family member

Unchanged

Parental Leave

61 weeks if employee took pregnancy leave; and

63 weeks if employee did not take pregnancy leave

Unchanged

Pregnancy Leave

Pregnancy leave ends 12 weeks after the birth, still-birth or miscarriage

Unchanged




Family Medical Leave

28 weeks unpaid leave in a 52-week period

Unchanged

Child Death Leave

After 6 months of employment, up to 104 weeks of leave for death of a child, regardless of whether related to a crime

Unchanged

Crime-Related Child Disappearance Leave

After 6 months of employment, up to 104 weeks of leave

Unchanged

Temporary Help Agencies

Requires temporary help agencies to provide an assignment employee with 1 week’s written notice or pay in lieu if an assignment that was estimated to last for 3+ months is terminated before the end of its estimated term



Unchanged

An assignment worker must be paid a rate equal to the rate paid to an employee if they perform substantially the same kind of work in the same establishment, their performance requires substantially the same skill, effort and responsibility, and their work is performed under similar working conditions

Eliminated

An assignment employee who believes that their rate of pay is lower than that of a comparable employee may request a review of their rate of pay from the temporary help agency. If the temporary help agency disagrees with the assignment employee’s belief, provide a written response to the assignment employee setting out the reasons for the disagreement




Eliminated

Record Keeping Requirements

An employer shall also record:


1. The dates and times that the employee worked


2. If the employee has 2+ regular rates of pay and worked in excess of the overtime threshold in a work week, the dates and times that the employee worked in excess of the overtime threshold at each rate of pay


3. The amount of vacation pay that the employee earned during the vacation entitlement year and how that amount was calculated



4. In cases of an alternative vacation entitlement year, the amount of vacation pay an employee earned during the stub period and how that amount was calculated


5. Domestic or sexual violence leave: An employer shall ensure that mechanisms are in place to protect the confidentiality of records given to or produced by the employer that relate to an employee taking such leave


6. Written statements regarding working or substituting a public holiday (see above)

No change.

An employer shall also record the dates and times that the employee was scheduled to work or to be on call for work, and any changes made to the on call schedule and any cancellations

Eliminated

The employer shall retain or arrange for some other person to retain each vacation time and vacation pay record for 5 years after it was made



Unchanged

Remedies & Penalties

The Director of Employment Standards may publish  information about employers (including online) if deemed to be in contravention of the ESA, including the names, a description of the contravention, the date of the contravention, and the amount of the penalty

Unchanged

Collection

Allows the Director to accept security for amounts owing under the Act, issue warrants to collect money pursuant to an order under the Act or register a lien respecting money owed pursuant to an order under the Act. These powers may be delegated to collectors

Unchanged



Labour Relations Act, 1995

 

 

BEFORE 


Changes made by the Fair Workplace Better Jobs Act



NOW – 

Current ESA 


Changes made by the Making Ontario Open for Business and the Restoring Ontario’s Competitiveness Acts

Certification

Card-based certification will be permitted in the building services, home care and community services, and temporary help agency industries

Card-Based certification is no longer permitted in the building services, home care and community services and temporary help agency industries (but is retained for the construction industry).  This means that in most cases a secret ballot will be required to certify a trade union in all industries other than construction.  









The Ontario Labour Relations Board will be allowed to conduct votes outside the workplace, as well as electronically and by telephone

Application for Employee List

Unions with the support of at least 20% of an organization’s employees will be entitled to access a complete list of the employees in the proposed bargaining unit, along with their phone numbers and personal emails



The employer shall ensure that all reasonable steps are taken to protect the security and confidentiality of the list, including protecting its security and confidentiality during its creation, compilation, storage, handling, transportation, transfer and transmission

Cancelled. Unions no longer will have access to employee lists and contact information.  


Any unions that have already obtained a list under direction from the Ontario Labour Relations Board based on the previous legislation must immediately destroy the list. 

First Agreement Mediation & Arbitration

If the parties are unable to effect a first collective agreement, either party may apply to the Minister to appoint a first collective agreement mediator



The mediation stage has been eliminated.


Access to first collective agreement arbitration will only be granted where, in the Boards opinion, collective bargaining has been unsuccessful because of:

  1. the employers refusal to recognize the bargaining authority of the trade union;
  2. the uncompromising nature of any bargaining position adopted by one of the parties;
  3. the failure of one of the parties to make reasonable or expeditious efforts to conclude a collective agreement, or;
  4. any other reason the board considers relevant.

Where the first collective agreement mediation does not result in the parties entering into a collective agreement, it may proceed to first collective agreement mediation-arbitration

 

Displacement certification application must be held in abeyance pending completion of the first agreement mediation-arbitration process

Consolidation of Bargaining Units

The Ontario Labour Relations Board will have the power to consolidate a certified bargaining unit with an existing bargaining unit of employees of the employer represented by the same union

Eliminated.


The Ontario Labour Relations Board can no longer review or make changes to existing bargaining units (except in limited circumstances such as mergers and amalgamations). 

Extending Just Cause Requirement for Discipline & Discharge

An employer is prohibited from dismissing, threatening to dismiss or imposing any other penalty on an employee unless they have just cause (including prior to the expiry of a probationary period) during the following times:


1. The period that begins on the date of certification and ends on the earlier of (i) the date on which a first collective agreement is entered into and (ii) the date on which the trade union no longer represents the employees in the bargaining unit, and;


2. The period that begins on the date on which a strike or lock-out became lawful and that ends on the earlier of (i) the date on which a new collective agreement is entered into and (ii) the date on which the trade union no longer represents the employees in the bargaining unit

Unchanged.

Successor Rights

Extended to the building services industry for services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises (i.e., building cleaning services, food services and security services)

Unchanged with respect to the building services industry.


However, the governments ability to extend successor rights to other sectors by regulation has been eliminated.

Will be extended to other types of service providers that directly or indirectly receive public funds as may be prescribed, subject to such terms and conditions as may be prescribed

Offences

Maximum fines for contravention are $5,000 for individuals and $100,000 for organizations

Maximum fines are reduced to $2,000 for individuals and $25,000 for organizations.

Return to Work

Required to reinstate employees upon request at any time following the commencement of a lawful strike

Only required to reinstate employees after a strike that lasts six months or less.